JUDGMENT

D. A. DESAI, J.

( 1 ) IF solemn agreements proposed by the employer and readily acceded to by the workmen and holding the forte for over a quarter of a century are crudely disowned compelling the workmen to knock at the door of the apex Court for removing the road-block in the access to justice set up by preliminary objection of technical nature, industrial peace and harmony chanted by the employer would be not merely an empty mantra but a futile exercise of chasing a mirage and unfortunately that is the situation here.

( 2 ) HINDUSTAN Lever Ltd. , a multi-national company, respondent herein addressed a communication dated 24/01/1957 recording the outcome of mutual deliberations, between the Hindustan Lever Ltd. (employer for short) and the Hindustan Lever Mazdoor Sabha (union for short) recognised representative union of the workmen employed by the employer. The relevant portion may be extracted:"ex. W-2 24/01/1957the President,hindustan Lever Mazdoor Sabha,

( 3 ) WE agree that for all matters of an all-India nature, we will communicate with the Personnel Director. As for the other points raised by you, we agree to follow the procedure, as far as legally permissible.

( 4 ) LOCAL matters, if not settled by negotiations, will have to be dealt with otherwise. For instance, the Sabha may go in for conciliation or may be free to resort to any other legitimate and/or peaceful method.

( 5 ) WE are indeed glad to note that you will not contest issues about field force on the basis of their not being workmen but you will contest issues only on their merits in the same way as you do for other employees, We wish to take the opportunity also to confirm your agreement with us that in regard to demands relating to Field Force contained in Ref. No. 48 of 1956; now pending adjudication at Delhi, you will not contest the issue on the basis of their not being workmen? but you will contest the issue on the merits of the demands as you do for other employees. YOURS faithfully,sd/- P. Pullat President

( 6 ) THE union in its counter-affidavit inter alia contended that the employer was estopped from challenging the status of the two concerned workmen as not being workmen within the meaning of the expression in the Act on account of a subsisting valid concluded agreement between the parties inter alia providing that the employer will not contest the issue about status of field force (which expression includes salesman) on the basis of their not being workmen but shall contest the issue only on the merits in the same way as they do for other employees. It was also contended that in view of Shri Roop Chandra award the issue about existence of the agreement and the status of salesman is res judicata and cannot be reopened till the agreement remains in force and operative.

( 7 ) THE rival pleadings led to the Industrial Tribunal framing the following issues :" (1) Whether the management is estopped from challenging the status of these two concerned workmen as workmen within the meaning of the Industrial Disputes Act ? (2) Whether the award dated 17-11-1966 of the Additional Industrial Tribunal, Delhi would, operate as res judicata between the parties ? (3) If issue No. 1 is answered in the negative. whether the concerned workmen are workmen within the meaning of the I. D. Act ? (4) What is the effect of the order dated 6-1-1975 passed by the I. T. Maharashtra in reference 203 of 1973 and order dated 1-10-1975 of the Supreme Court in petition for special leave 1602 of 1975? (5) Whether the reference is incompetent and bad in law for reasons mentioned in prel. objections (III ). (IV), (V) and (VII) and (VIII) ?

( 8 ) ISSUE Nos. 1, 2, 4 and 5 were directed to be heard as preliminary issues. On Issue No. 1, the Industrial Tribunal held that the three communications Ex. W-2 dated January 24, 1957, Ex. W-3 dated 24/04/1957 and Ex. W-4 dated 1/05/1957 did not spell out a complete concluded agreement between the parties on the points set out therein but it